# U.S. Department of Labor

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## Record

- **Collection:** Agency decision
- **Document type:** Agency decision

## Text

U.S. Department of Labor

Administrative Review Board
200 Constitution Avenue, N.W.
Washington, D.C. 20210

In the Matter of:
STEPHEN THORSTENSON,
COMPLAINANT,
v.

ARB CASE NOS. 2018-0059
2018-0060
ALJ CASE NO. 2015-FRS-00052
DATE: November 25, 2019

BNSF RAILWAY COMPANY,
RESPONDENT.
Appearances:
For the Complainant:
Paul Bovarnick, Esq.; Rose Senders & Bovarnick LLC; Portland
Oregon and Shenoa L. Payne, Esq.; Richardson Wright LLP; Portland,
Oregon
For the Respondent:
Jacqueline M. Holmes, Esq.; Nikki L. McArthur, Esq.; Jones Day;
Washington, D.C.
Before: William T. Barto, Chief Administrative Appeals Judge; James A.
Haynes, Thomas H. Burrell, and Heather C. Leslie, Administrative Appeals
Judges
FINAL DECISION AND ORDER
PER CURIAM. The Complainant, Stephen Thorstenson, filed a retaliation
complaint under the employee protection provision of the Federal Rail Safety Act of

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1982 (FRSA), as amended, 1 with the Department of Labor’s Occupational Safety
and Health Administration (OSHA). Thorstenson alleged that he was a victim of
retaliation by BNSF (Respondent), his employer, for reporting a workplace injury.
OSHA concluded that there was reasonable cause to believe that Respondent
violated the whistleblower provisions of the FRSA and awarded back pay,
compensatory damages and punitive damages, expungement of Complainant’s
employment records, and ordered Respondent to post a Notice to Employees. BNSF
timely objected and requested a hearing before the Office of Administrative Law
Judges (OALJ). The Administrative Law Judge (ALJ) found that Thorstenson
engaged in protected activity and that that activity was a contributing factor in the
discipline he received. The ALJ further found that BNSF established by clear and
convincing evidence that it would have disciplined Thorstenson even if he had not
engaged in protected activity. Both Thorstenson and BNSF appealed the ALJ’s
decision to the Administrative Review Board (ARB or Board). Under the authority
granted by the Secretary of Labor, 2 the Chief Administrative Appeals Judge
directed that this appeal would be decided by the full Board due to the exceptional
importance of the issues presented. For the following reasons, we affirm the ALJ’s
Decision and Order.
BACKGROUND 3
At the relevant time at issue in this case, Thorstenson worked as a conductor
for BNSF in and around Vancouver, Washington. On February 2, 2009, Thorstenson
injured his left knee when he slipped on steps while boarding a train, and he made
a timely report of the injury. D. & O. at 3. He was off work due to the injury for
almost six months. When he returned to work, he still had swelling, stiffness, and
some pain in his knee after he completed work trips, and occasionally saw a doctor
for these symptoms. Thorstenson provided verbal updates to BNSF managers
regarding the condition of his knee. He asked the treating physician to discharge

49 U.S.C. § 20109 (2008), as implemented at 29 C.F.R. Part 1982 (2018) and 29
C.F.R. Part 18, Subpart A (2018).

1

Secretary’s Order No. 01-2019 (Delegation of Authority and Assignment of
Responsibility to the Administrative Review Board), 84 Fed. Reg. 13,072 (April 3, 2019).
2

This background follows the ALJ’s Decision and Order and undisputed facts. In
reciting these background facts, we make no findings of fact.
3

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him after an appointment on October 20, 2010, and he was able to return to work
without restrictions.
On November 17, 2010, Thorstenson banged his left kneecap against
something metal (a desk onboard the train) and felt pain, but thought that it was
from the injury he sustained in February 2009. On the next day, November 18, he
had more than the usual swelling, stiffness, and pain in his knee. He was not
scheduled to work on November 19 and returned to the orthopedic office where he
saw a physician’s assistant. Thorstenson informed the physician’s assistant that he
had bumped a desk and was afraid that he had aggravated his earlier injury. D. &
O. at 4. The physician’s assistant prescribed pain medication. After returning to
work on November 20 and 21, Thorstenson continued having swelling, stiffness, and
pain and returned to the doctor on November 22, 2010. The doctor drained fluid
from the knee, took x-rays, injected cortisone, and recommended that Thorstenson
remain off work. 4 On November 22, Thorstenson contacted the trainmaster and
filled out an injury report. D. & O. at 4. The ALJ found that Thorstenson reported
the injury to BNSF on November 22, 2010, which was five days after the injury on
November 17, 2010. D. & O. at 4.
On November 24, 2010, BNSF notified Thorstenson that it was investigating
his apparent late report of the workplace injury and would conduct a hearing on
January 21, 2011. Following the hearing, a decision maker, General Manager Doug
Jones, concluded that Thorstenson had violated the rules because he did not report
an injury within 72 hours, and he did not report the injury before going to the
doctor. 5 Jones recommended a Level S or serious violation which resulted in a 30day “record suspension.” 6 Although Thorstenson did not have a history of discipline
On December 6, 2010, Thorstenson returned to the doctor, who diagnosed several
injuries to the knee. Complainant was off work until he recovered from surgery and
returned to full duty on January 17, 2011.
4

D. & O. at 7-8. BNSF follows the General Code of Operating Rules (GCOR). These
rules include a duty to report an injury immediately to the proper manager and submit a
written report. GCOR 1.2.5, RX 5 at 15. In addition, BNSF has a Policy for Employee
Performance Accountability which provides that employees will not be disciplined for late
reporting of muscular-skeletal injuries, as long as the injury is reported within 72 hours of
the probable triggering event. RX 5 at 18.
5

For a “record suspension,” the suspension is noted on the employee’s work history in
his personnel file, but he may work and earn regular wages. This discipline can be imposed
for “Level S” or serious violations.
6

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within the previous five years, he had reported an injury during that time.
Therefore, Jones imposed a 36-month review period to attach to the Level S
violation and record suspension. D. & O. at 8. At the time in question, the review
period that attaches to a Level S violation for an employee that was “discipline free”
and “injury free” was 12 months. Id.
Thorstenson filed a complaint with OSHA on February 7, 2011, alleging that
the suspension was in retaliation for requesting medical treatment, following the
orders of a treating physician, and for notifying BNSF of a work-related injury. 7
On June 26, 2011, five months after receiving the Level S for late reporting,
Thorstenson was working as a conductor aboard a train. D. & O. at 9. Under BNSF
rules, the engineer and conductor are jointly responsible for the operation of the
train. The conductor’s control of the train’s speed is limited to pulling the emergency
brake and he is required to do this if the maximum authorized speed is exceeded by
five miles an hour or more. At the time of the incident, the train exceeded the 55
miles-per-hour limit for 44 seconds, of which twelve seconds were at 60 mph. The
“alerter system” activated for the last six seconds the train was speeding, and the
engineer moved the throttle down from position eight to position one and then to
idle. D. & O. at 10. About six or seven seconds after the engineer moved the throttle
from position eight to one, Thorstenson noticed that the train was travelling at 60
mph. He pulled the emergency brake. As this can cause the cars to bunch together
and throw people aboard the train forward or backward, he braced himself but
failed to tell the engineer to do the same. The train passed through a crossing
during this incident, but neither Thorstenson nor the engineer sounded the whistle.
D. & O. at 10.
On June 29, 2011, BNSF’s Superintendent of Operations in Vancouver, Chris
Lucero, issued a Notice of Investigation into the incident on June 26, and the
charges against the two employees were heard together. At the investigation
hearing, an expert on event records testified that the train had been slowed to 59
mph at the time Thorstenson pulled the emergency brake, and that Thorstenson
could have read this on his speedometer. The Conducting Officer and Terminal
Manager Michael Cart told Superintendent Lucero that he thought the Company
D. & O. at 9. Subsequently, Complainant elected not to pursue the claim concerning
following the orders of a treating physician. H.Tr. at 13.
7

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had shown the violation. Lucero concluded that BNSF should dismiss both
Thorstenson and the engineer based solely on this incident (a standalone dismissal),
including the failure to blow the whistle as the train passed through a crossing. D.
& O. at 11. The human resources manager disagreed and advised that it would be
difficult to support a standalone dismissal for the engineer’s case. She recommended
that the June event be treated as a Level S violation for both employees. D. & O. at
12. The General Manager, Johnson, agreed with the H. R. advice and imposed Level
S violations for Thorstenson and the engineer.
However, due to its progressive discipline policy, and Thorstenson’s 36-month
review period imposed in January 2011 for the previous Level S violation, BNSF
terminated his employment. Thorstenson was notified of his discharge on August
30, 2011. On August 31, 2011, Complainant amended his OSHA complaint. He
asserted that he would not have been terminated had he not been previously
disciplined for late-filing of an injury report.
Following a hearing, the ALJ found that Thorstenson established that he
engaged in protected activity by filing an injury report and filing a claim of
retaliation with OSHA. The ALJ found that Thorstenson’s injury report was a
contributing factor in the first Level S violation that he received. However, the ALJ
found that BNSF established its affirmative defense that it disciplined Thorstenson
because his report was late, not because he reported an injury. In addition, the ALJ
found that BNSF established that BNSF would have imposed a second Level S
violation based on Thorstenson’s role in the June 2011 safety incident in the
absence of protected activity. Thus, the ALJ found, based on BNSF’s policy of
progressive discipline, that BNSF would have terminated Thorstenson’s
employment absent the protected injury report or the complaint with OSHA.
Thorstenson appealed the ALJ’s decision to the Administrative Review Board, and
BNSF cross-appealed.
JURISDICTION AND STANDARD OF REVIEW
The Secretary of Labor has delegated to the Administrative Review Board
authority to review ALJ decisions and issue final agency decisions in cases arising
under the FRSA. Secretary’s Order No. 01-2019 (Delegation of Authority and
Assignment of Responsibility to the Administrative Review Board), 84 Fed. Reg.
13,072 (April 3, 2019); 29 C.F.R. § 1982.110(a). The ARB will affirm the ALJ’s

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factual findings if supported by substantial evidence but reviews all conclusions of
law de novo. Austin v. BNSF Ry. Co., ARB No. 17-024, ALJ No. 2016-FRS-013, slip
op. at 7 (ARB Mar. 11, 2019). As the United States Supreme Court has recently
noted, “[t]he threshold for such evidentiary sufficiency is not high.” Biestek v.
Berryhill, 139 S. Ct. 1148, 1154 (2019). Substantial evidence is “‘more than a mere
scintilla.’ It means—and means only—‘such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.’” Id. (citing and quoting
Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)).

DISCUSSION
The FRSA prohibits a railroad carrier engaged in interstate or foreign
commerce from discharging, demoting, suspending, reprimanding, or in any other
way discriminating against an employee if such discrimination is due, in whole or in
part, to the employee’s lawful, good faith protected activity. 49 U.S.C. §§ 20109(a) &
(b). To prevail, an FRSA complainant must establish the following by a
preponderance of the evidence: (1) he engaged in a protected activity, as statutorily
defined; (2) he suffered an unfavorable personnel action; and (3) the protected
activity was a contributing factor, in whole or in part, in the unfavorable personnel
action. If a complainant meets this burden of proof, the employer may avoid liability
only if it proves by clear and convincing evidence that it would have taken the same
unfavorable personnel action absent the complainant’s protected activity. 8
1. Thorstenson engaged in protected activity
The parties do not dispute that Thorstenson engaged in protected activity by
filing a report of injury in February 2009 and by filing a report of injury in
November 2010. We affirm these findings as they are unchallenged on appeal. See
Brough v. BNSF Ry. Co., ARB No. 16-089, ALJ No. 2014-FRS-103, slip op. at 5
(ARB June 12, 2019).
On appeal, BNSF contends that the ALJ improperly considered protected
activity that was alleged for the first time in an interrogatory response before the
49 U.S.C. § 20109(d)(2)(A)(i); 49 U.S.C. § 42121(b)(2)(B)(i)(2000); Riley v. Canadian
Pac. R.R. Corp., ARB Nos. 16-010, -052, ALJ No. 2014-FRS-044, slip op. at 4 (ARB Jul. 6,
2018).
8

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ALJ, specifically the filing of an OSHA whistleblower retaliation claim on February
7, 2011. The ALJ found that Thorstenson had raised the February 2011 OSHA
complaint as protected activity in response to BNSF’s pre-hearing interrogatories,
which was sufficient notice that it would be litigated. D. & O. at 16.
We agree with the ALJ and affirm the ALJ’s decision to amend the pleadings
to conform to the evidence as Respondent has not shown an abuse of discretion. 29
C.F.R. § 18.36 (permitting the ALJ to amend pleadings). As the ALJ noted, BNSF
did not contend that it was prejudiced by or that it was unable to prepare a defense
to the additional claim of protected activity identified in pre-hearing discovery.
2. BNSF imposed several adverse actions on Thorstenson
The parties do not dispute that both BNSF’s imposition of a Level S violation
as a result of the late injury report and its termination of Thorstenson’s
employment following the second Level S violation are adverse employment actions.
We affirm these findings as they are unchallenged on appeal.
BNSF also contends that the ALJ erred in finding that the 36-month review
period and the Notice of Investigation following the November 2010 injury report
were adverse actions. In considering whether an action is adverse, the Board has
referenced the United States Supreme Court’s decision in Burlington Northern &
Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006), a case decided under Title VII of the
Civil Rights Act of 1964. 9 In describing the injury or harm alleged as retaliation, the
Court held that: “a plaintiff must show that a reasonable employee would have
found the challenged action materially adverse, “which in this context means it well
might have ‘dissuaded a reasonable worker from making or supporting a charge of
discrimination.’ ” Id at 68. Moreover, the Court held that the significance of any
given act of retaliation will often depend upon the particular circumstances and
context. Id at 69. We affirm the ALJ’s finding that the 36-month review period is an
adverse action as it formed part of Thorstenson’s progressive discipline.
We agree that any alleged adverse action must be considered in context,
including internal investigations and hearings which may result in the imposition
9

42 U.S.C. § 2000e (1977).

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of discipline. See, e.g., Petronio v. Nat’l R.R. Pas. Corp., 2019 WL 4857579 (SDNY
2019) (bringing a disciplinary charge alone, in and of itself, does not automatically
constitute an adverse action, although it can constitute one if such action would
dissuade a reasonable employee from engaging in the protected conduct). However,
given our disposition of this case we need not address Respondent’s specific
arguments regarding whether the Notice of Investigation was an adverse
employment action.
3. The ALJ erred in his contributing factor analysis
To establish a violation under the FRSA, a complainant must show that the
protected activity was a “contributing factor” in the adverse employment action. 49
U.S.C. § 20109(d)(2)(A), referring to 49 U.S.C. § 42121(b)(2)(B)(i). “A ‘contributing
factor’ includes ‘any factor, which alone or in connection with other factors, tends to
affect in any way the outcome of the decision.’” Rookaird v. BNSF Ry. Co., 908 F.3d
451, 461-62 (9th Cir. 2018), quoting Gunderson v. BNSF Ry. Co., 850 F.3d 962, 969
(8th Cir. 2017). “[T]he contributing factor that an employee must prove is
intentional retaliation prompted by the employee engaging in protected activity.”
Kuduk v. BNSF Ry. Co., 768 F.3d 786, 791 (8th Cir. 2014). In satisfying this
statutory standard, a complainant need not prove a retaliatory motive beyond
showing that the employee’s protected activity was a contributing factor in the
adverse action. Araujo v. N.J. Transit Rail Operations, Inc., 708 F.3d 152, 158 (3d
Cir. 2013).
On appeal, BNSF contends that the ALJ erred in finding that Thorstenson’s
November 22, 2010 report of an injury contributed to his discipline. The ALJ relied
on “chain of events” or “inextricably intertwined” analysis to conclude that
Complainant’s protected activity of filing an injury report in November 2010
contributed to the Notice of Investigation and the imposition of the Level S violation
for untimely filing. Specifically, the ALJ found that “there cannot be a late report
unless there is a report, and the report is protected.” 10
D. & O. at 19. We note that the ALJ referred to the complainant’s burden to prove
contributing factor causation as establishing or proving a “prima facie case.” After a
hearing, the complainant must prove causation by a preponderance of the evidence. A
prima facie case is usually associated with an inference of causation. Brune v. Horizon Air
Indus., ARB No. 04-037, ALJ No. 2002-AIR-008 (ARB Jan. 31, 2006). Although the ALJ
used “prima facie case,” he applied the correct standard. D. & O. at 15.
10

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The ARB has held that where protected activity directly leads to an
investigation and the investigation leads to discovery of wrongdoing which results in
an unfavorable employment action, the report and the discipline are inextricably
intertwined and causation is established presumptively as a matter of law. In
DeFrancesco v. Union R.R. Co., ARB No. 10-114, ALJ No. 2009-FRS-009 (ARB Feb.
29, 2012), for example, the ARB observed the following:
If DeFrancesco had not reported his injury as he was required to
do, Kepic would never have reviewed the video of DeFrancesco’s fall or
his employment records. Kepic admitted this at the hearing, testifying
that such a review was routine after an employee reported an injury
and that the purpose of the review was to determine “the root cause.”
Kepic stated that after seeing the video he reviewed DeFrancesco’s
injury and disciplinary records to determine whether there was a
pattern of safety rule violations and what corrective action, if any,
needed to be taken.
While DeFrancesco’s records may indicate a history and pattern
of safety violations, the fact remains that his report of the injury on
December 6 triggered Kepic’s review of his personnel records, which
led to the 15-day suspension. If DeFrancesco had not reported his fall
and Kepic had not seen the video, Kepic would have had no reason to
conduct a review of DeFrancesco’s injury and disciplinary records,
decide that he exhibited a pattern of unsafe conduct, and impose
disciplinary action.
… Applying the framework of proving a contributing factor
under AIR 21, we can only conclude as a matter of law that
DeFrancesco’s reporting of his injury was a contributing factor to his
suspension.
Id. at 7-8 (footnotes omitted and emphasis added).
The ALJ’s findings and reasoning in this case are analogous to that in
DeFrancesco. Thorstenson filed an untimely report. BNSF, which had a clear policy
on timely reporting injuries, disciplined Thorstenson for untimely reporting. The

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ALJ, following ARB precedent, found that the discipline was “inextricably
intertwined” with the protected report. Had there been no report, there would have
been no discipline for untimely filing it. 11 Through this reasoning, the ALJ found
that Thorstenson met his burden to prove contributing factor causation by a
preponderance of the evidence. D. & O. at 19.
We hold that the ALJ committed legal error. We take this opportunity to
clarify that we no longer require that ALJs apply the “inextricably intertwined” or
“chain of events” analysis. 12 We note that the plain language of the statute does not
include the term “inextricably intertwined.” Rather, this is a construction that
substitutes for, and in some cases circumvents, the ALJ’s contributing factor or
affirmative defense analyses.
By placing the focus on how the employer came to learn of the employee’s
wrongdoing rather than the employer’s actions based on that wrongdoing or
protected activity, “chain of events” causation departs from the statute’s
“contributing factor” text. In Gunderson v. BNSF Ry. Co., the Eighth Circuit noted
that Congress did not intend to insulate wrongdoing because the employee engaged
in protected activity. 850 F.3d 962, 969-70 (8th Cir. 2017) (“An employee who
engages in protected activity is not insulated from adverse action for violating
workplace rules, and an employer’s belief that the employee committed misconduct
is a legitimate, non-discriminatory reason for adverse action.”). The Seventh Circuit
has also criticized the inextricably intertwined doctrine, noting that reporting the
injury is not a proximate cause to the termination when the employee is terminated
for carelessness in creating the injury or for some other conduct discovered as part
See, e.g., Riley v Dakota, Minnesota & Eastern RR Corp., ARB Nos. 16-010, 16-052
(July 6, 2018), slip op. at 5, citing Henderson v. Wheeling & Lake Erie Ry., ARB No. 11-013,
slip op. at 14 (ARB Oct. 26, 2012) (Riley was charged with failure to promptly report an
incident to his supervisor and was not found to have violated any other work rule or
regulation); see also Smith v. Duke Energy Carolinas, LLC, ARB No. 11-003, ALJ No. 2009ERA-007, slip op. at 4 (ARB June 20, 2012) (the termination decision by Smith's managers
stemmed solely from Smith's seven-day delay in reporting false log signatures, and not on
the bare fact that Smith made the report, thus the Board held that Smith's act of reporting
the information to the managers triggered the decision to terminate him).
11

In overturning our rule of “inextricably intertwined” and “chain of events” causation,
we note that several Circuit Courts of Appeal have disagreed with our prior analysis. We
further explain our departure by emphasizing the language of the statute. Nat'l Cable &
Telecommunications Ass'n v. Brand X Internet Servs, 545 U.S. 967 (2005).

12

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of the review process initiated by the report of the injury. Koziara v. BNSF Ry. Co.,
840 F.3d 873, 877 (7th Cir. 2016) (“[p]roximate causation creates legal liability,
‘proximate’ denoting in law a relation that has legal significance”). We agree with
this analysis.
This is not to say that an ALJ may not find that an adverse action and
protected activity are intertwined such that contributing factor causation is
factually established. For these cases, the ALJ must explain how the protected
activity is a proximate cause of the adverse action, not merely an initiating event.
Koziara, 840 F.3d at 877 (finding that the district court erred in relying on the fact
that the “injury report initiated the events that led to his discipline”). In Koziara,
the Seventh Circuit held that the “[the district court] failed to distinguish between
causation and proximate causation. The former term embraces causes that have no
legal significance. Had the plaintiff never been born or never worked for BNSF he
would neither have been hurt by the plank flung at him by the energetic front-end
loader nor have stolen railroad ties from the railroad. But that doesn’t mean that
his being born or his being employed by the railroad were legally cognizable
[proximate] causes of his being fired.” Id. at 877.
By applying the ARB’s precedent on “inextricably intertwined” or “chain of
causation,” the ALJ erred. For the reasons discussed below, that error does not
require remand in this case because the ALJ also found that BNSF established its
affirmative defense, and we affirm those findings.
4. BNSF would have imposed a Level S discipline for untimely
reporting in the absence of protected activity
If a complainant meets his or her burden of proof that he or she engaged in
protected activity and that protected activity contributed to an adverse action, the
employer may avoid liability only if it proves by clear and convincing evidence that

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it would have taken the same unfavorable personnel action in the absence of the
complainant’s protected activity. 13
The ALJ concluded that BNSF established by clear and convincing evidence
that it disciplined Thorstenson in January 2011 because his report of injury on
November 22, 2010, was late, not because he reported an injury. The ALJ found
that the overwhelming evidence establishes that BNSF imposes no discipline when
a report is timely and imposes discipline when the report is late. D. & O. at 23.
The ALJ noted that Complainant himself had previously filed seven injury
reports and was not disciplined, but discipline was imposed on the one occasion
when he reported late. In addition, BNSF submitted the personnel files of seventeen
workers who reported injuries in 2011 and were not disciplined and seven Public
Law Board decisions that upheld its decisions to discipline employees for late
reporting of an injury. The ALJ gave some weight to the Public Law Board’s
determination that imposition of Level S discipline for a late injury report was
consistent with BNSF’s disciplinary policy.
The ALJ found that there was no evidence of pretext or personal animus and
that Thorstenson testified that the trainmaster did not seem upset with him when
he went into the office to complete the injury report. Thus, the ALJ found that
Respondent established the affirmative defense by clear and convincing evidence, a
burden that is higher than that faced when establishing contributing factor
causation.
We affirm the ALJ’s rejection of Complainant’s contention that BNSF’s
enforcement of its timely injury reporting policy is unreasonable and unduly
burdensome. The ALJ found that so long as a rule is lawful, an employer is entitled
to its disciplinary rules even if the rules are unwise, counterproductive, or arbitrary.
“‘Courts do not sit as a super-personnel department that re-examines an employer’s
disciplinary decisions.” See Kuduk, 768 F.3d at 792. The ALJ noted that “[w]hen a
“Relief may not be ordered under subparagraph (A) if the employer demonstrates by
clear and convincing evidence that the employer would have taken the same unfavorable
personnel action in the absence of that behavior.” See 49 U.S.C. § 20109 (incorporating the
burdens of proof found in 49 U.S.C. § 42121(b)(2)(B)(iv)); cf. Clem v. Computer Sciences
Corp., ARB No. 16-096, ALJ No. 2015-ERA-003, -004, slip op. at 18 n.8 (ARB Sept. 17,
2019) (discussing the clear and convincing standard in context of statutory requirements).
13

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worker reports an injury, the railroad is in a position to investigate to determine
whether there are unsafe conditions that must be corrected for the protection of the
public and of rail workers. Without notice of an injury, a railroad cannot take these
steps.” D. & O. at 23.
We conclude that the ALJ’s findings are supported by substantial evidence.
We affirm the ALJ’s finding that Respondent established by clear and convincing
evidence that it would have disciplined Complainant with a Level S violation for the
sole reason that his report was late, not because he reported an injury.
5. BNSF would have terminated Thorstenson under its progressive
discipline policy in the absence of protected activity
The ALJ found that there was “no dispute” that BNSF would have imposed
the second Level S violation for Thorstenson’s role in the June 2011 safety incident
in the absence of protected activity. D. & O. at 25-26. The ALJ factored in that the
other employee involved in the incident was also given a Level S violation, and that
it was possible that Complainant could have received a standalone dismissal given
the seriousness of the charges against him in connection with the event.
However, in Thorstenson’s case, he was terminated because the second Level
S violation occurred while Thorstenson was under a 36-month review period for the
prior Level S violation. The ALJ found that it was part of BNSF’s progressive
discipline policy to terminate an employee for receiving a second Level S violation
within the review period. The ALJ’s findings are supported by substantial evidence.
As we affirm the ALJ’s finding that BNSF established by clear and
convincing evidence that it would have disciplined Thorstenson with a Level S
violation for untimely reporting an injury, and we affirm the ALJ’s finding that
BNSF would have imposed a second Level S discipline, we therefore also affirm the
ALJ’s finding that BNSF would have terminated Thorstenson’s employment
following his second Level S violation, even absent the protected injury report or his
filing a claim with OSHA.

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6. BNSF’s 36-month review period
General Manager Jones imposed a 36-month review period following
Thorstenson’s first Level S violation for untimely reporting because Thorstenson
had filed an injury report within the previous five years. The ALJ found that this
was a violation of the FRSA. The ALJ also found that BNSF failed to establish its
affirmative defense as to the imposition of a 36-month review period for the latereported injury. D. & O. at 24-25. We agree with the ALJ that BNSF violated the
FRSA with its imposition of the 36-month review period. At the time, the review
period following a Level S violation was 12 months for “injury free” and “discipline
free” employees, and the reason that Jones extended it to 36 months was because of
Thorstenson’s prior injury report.
The ALJ further found that Thorstenson did not establish any damages due
to the imposition of the 36-month review period because the second Level S
violation triggering progressive discipline occurred within 12 months and would
have caused the termination whether BNSF had imposed the 12-month or the 36month review period. Nonetheless, the ALJ ordered that BNSF cease and desist
from its policy of imposing the 36-month review periods for persons who receive
discipline but have reported an injury prior to receiving that discipline. 14
BNSF appealed the ALJ’s order, asserting that the “cease and desist” order
was beyond the ALJ’s powers. We agree. The ALJ’s cease and desist order is ultra
vires and we vacate the order. See Hoffman v. NetJets Aviation, Inc., ARB No. 09021, ALJ No. 2007-AIR-007 (ARB Mar. 24, 2011) (Board only has power to abate a
proven violation); see also Yates v. Superior Air Charter, LLC, ARB No. 17-061, ALJ
No. 2015-AIR-028, n. 9 (ARB Sept. 26, 2019).
CONCLUSION
Accordingly, we AFFIRM the ALJ’s finding that Thorstenson established
that he engaged in protected activity and that the imposition of a Level S violation
as a result of the late injury report, the 36-month review period, and the
14

8.

The ALJ acknowledged that BNSF has since discontinued that practice. D. & O. at

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termination of employment following the second Level S violation are adverse
employment actions. In addition, while we conclude that the ALJ erred in his
contributing factor analysis, we hold that it is unnecessary to remand for further
findings because we AFFIRM the ALJ’s finding that BNSF established by clear and
convincing evidence that it would have imposed the Level S violations and
terminated Thorstenson in the absence of the Complainant’s protected activity.
However, we VACATE the ALJ’s order that BNSF must cease and desist its policy
of imposing a greater discipline on employees based solely on account of an
employee’s history of workplace injuries as it is beyond the power of the ALJ.
SO ORDERED.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/agency%3Adol%3Afa0e1379303697c6. Public record. Not legal advice.